Eric D. Williams (P33359) | 524 North State Street | Big Rapids, MI 49307 | 231-796-8945 | [email protected]

The League joined the Public Corporation Law Section (PCLS) brief

The village clerk is not a public body or a member of the village council. The Plaintiff asks the court to hold the village clerk personally liable for intentionally violating the legal standards applicable to public bodies for keeping and correcting minutes under the OMA. This is an unwarranted extension of the personal liability provision of the OMA that cannot be authorized by a dictionary definition of “a public official”. The village clerk lacks the authority and legal duty under the OMA to correct or approve the minutes of the public body of the Village of Oakley. The village clerk added language to the minutes without approval of the public body–but this action did not correct or approve the minutes, because it is only the public body that keeps, corrects, and approves its minutes according to MCL 15.269. There is the potential for creating immense confusion over the duties of public officials that might be bootstrapped to an OMA violation to obtain a court ruling of an intentional violation of the OMA. This case demonstrates how it can happen. The Plaintiff claims the duties of the office of the village clerk as described in the General Law Village Act, MCL 64.5(1), MCL 64.5(3), are reasons the village clerk should be a “public official” subject to personal liability under MCL 15.273(1). The plain language of MCL 15.273(1) establishes personal liability for a public official who intentionally “violates this act,” not the General Law Village Act or any other statute describing the functions and duties of public officials.

The Michigan Supreme Court heard arguments April 6 and denied the application, an April 25 order states, “because we are not persuaded that the question presented should be reviewed by this Court.” The order leaves the decision Saginaw County Circuit Court Judge Richard Kaczmarek issued that Bolf is not considered a public official under the OMA.

Plaintiff Shannon Bitterman sued the Village of Oakley Clerk, Cheryl Bolf, under the Open Meetings Act. Bitterman alleged that Bolf violated the Open Meeting Act when she altered the minutes of a village council meeting after the minutes had been approved by the village council. Section 13(1) of the Open Meetings Act states that a “public official who intentionally violates this act shall be personally liable in the civil action.” MCL 15.273(1). Bolf argued that she was not a “public official” within the meaning of the Open Meetings Act. The circuit court agreed, and ruled in Bolf’s favor. The Court of Appeals affirmed in an unpublished per curiam opinion. Bitterman filed an application for leave to appeal to the Supreme Court. On November 25, 2015, the Supreme Court ordered oral argument on the application, to consider how the term “public official” is defined under Section 13(1) of the Open Meetings Act.